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bwt posted this earlier:

The Supreme Court rejected such notices in 1908. The case is BOBBS-MERRILL CO. v. STRAUS, 210 U.S. 339(1908).

But the OS (if you can call winders a OS) cds that come with most OEM systems say on the "for sale with a new pc only" now is selling those on ebay a violation of that clause? How binding is that clause? I agree that if it is binding etc. that it really sucks.

The Supreme Court rejected such notices in 1908. The case is BOBBS-MERRILL CO. v. STRAUS, 210 U.S. 339(1908).

Anonmity is something our country has not historically supported, at least not by and large.

Fucking moron. Plus you post it as Anonymous Coward and then can't even spell it when it's already on the screen. Yeah, spelling flames are lame but this one is just too pathetic to pass up. Quoting the Supreme Court, you HAVE heard of that, right?

"Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. The obnoxious press licensing law of England, which was also enforced on the Colonies was due in part to the knowledge that exposure of the names of printers, writers and distributors would lessen the circulation of literature critical of the government. The old seditious libel cases in England show the lengths to which government had to go to find out who was responsible for books that were obnoxious [362 U.S. 60, 65] to the rulers. John Lilburne was whipped, pilloried and fined for refusing to answer questions designed to get evidence to convict him or someone else for the secret distribution of books in England. Two Puritan Ministers, John Penry and John Udal, were sentenced to death on charges that they were responsible for writing, printing or publishing books. Before the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English-controlled courts. Along about that time the Letters of Junius were written and the identity of their author is unknown to this day. Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes."

TALLEY v. CALIFORNIA, 362 U.S. 60 (1960)

I hate to sound like the protector of corporate interests, but I guess I will have to.

I am so sick of idiots who always hate to do something they tell you they hate to do, then they go and do it. If you hate it so much quit doing it and then complaining about how much you hate it. Anyway, if corporate interests have you as their protector they're in worse shape than I thought.

Instead, they stole it. Simple. Plain.

Yes, you are pretty simple. And it's plain to see you're an idiot. They infringed, possibly.

The law is the law, in this case.

How about in this case? Or maybe this one ?

The parody broke the law. Hence the lawsuit.

Did you even READ the article? There IS no lawsuit!

Theft is theft.

And brain damage is brain damage. And fair use is fair use. Deal with it, fanboy.

I hate to sound like the protector of corporate interests, but I guess I will have to.

I am so sick of idiots who always hate to do something they tell you they hate to do, then they go and do it. If you hate it so much quit doing it and then complaining about how much you hate it. Anyway, if corporate interests have you as their protector they're in worse shape than I thought.

Instead, they stole it. Simple. Plain.

Yes, you are pretty simple. And it's plain to see you're an idiot. They infringed, possibly.

The law is the law, in this case.

How about in this case? Or maybe this one ?

The parody broke the law. Hence the lawsuit.

Did you even READ the article? There IS no lawsuit!

Theft is theft.

And brain damage is brain damage. And fair use is fair use. Deal with it, fanboy.

Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164 (1994)

The use of the photograph was possibly fair use by this definition, despite including the entirety of the photo. Another case that would relate would be

Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 113 (2d Cir. 1998)

Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164 (1994)

The use of the photograph was possibly fair use by this definition, despite including the entirety of the photo. Another case that would relate would be

Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 113 (2d Cir. 1998)

Judge Charles Legge of the 9th U.S. Circuit Court of Appeals on Tuesday dismissed Sony's claims that Connectix violated trademark and copyright laws with its Virtual Game Station software.

In fact, Judge Legge is a judge of the U.S. District Court for the Northern District of California, the federal trial court in which Sony sued Connectix. He had previously granted a preliminary injunction in favor of Sony and against Connectix on the basis that Sony was likely to succeed on its copyright and trademark claims. The Ninth Circuit (the federal appeals court which hears appeals from the Northern District of California) instructed Judge Legge to dissolve this preliminary injunction in its February 10, 2000 opinion:

[Judge Legge] concluded that Sony was likely to succeed on its infringement claim because Connectix's "intermediate copying " was not a protected "fair use" under 17 U.S.C. sec. 107. [Legge] enjoined Connectix from selling the Virtual Game Station or from copying or using the Sony BIOS code in the development of other Virtual Game Station products. [ . . . ]

We reverse and remand with instructions to dissolve the injunction. The intermediate copies made and used by Connectix during the course of its reverse engineering of the Sony BIOS were protected fair use, necessary to permit Connectix to make its non-infringing Virtual Game Station function with PlayStation games. [ . . . ]

[Legge] also found that Sony is likely to prevail on its claim that Connectix's sale of the Virtual Game Station program tarnishes the Sony PlayStation mark under 15 U.S.C. sec. 1125. We reverse that ruling as well.

In light of the Ninth Circuit's opinion, Judge Legge has now ruled that these claims by Sony (though not all claims by Sony) are deficient as a matter of law. Readers may judge for themselves whether they should be surprised by this turn of events.

The Second Amendment, currently, is not interpreted to say the individuals have the unrestricted right to "bear arms".

First there is US v Miller which says that the second amendment is a State Right and not an Individual Right. The power to regulate militias is the right of the states. To this end the states have the right to arm their militias. Also this ruleing of the Supreme Court has been repeatedly upheld (mostly by denying cert, which is usually interpreted as a strong affirmantion of the earlier ruling). Here are some references.

What a militia is, and is not, is defined in US Code Title 10, Subtitle A, Part I, Chapter 13. By the way this excludes female US Citizens who are not a member of the National Guard.

Should you be inclined to argue that US v Miller is just a liberal court ruling which ignores the origional intent of the founding fathers; it would be good to remember that the Federalists won the big battles in the US Constitution. But the Jeffersonians wrote the Bill of Rights. I think the most direct source of the Bill of Rights is the Virginia Declaration of Rights; written by Thomas Jefferson as adopted on June 12, 1776 (3 weeks before the signing of Declaration of Independence). Please look at Section 13 which begins "That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state;"

None of this says that the US Congress or the States couldn't pass a law specifying that individuals have the right to own and carry small arms. Further the 9th and 10th amendments roughly state that rights and powers not specifically granted the Federal Government are retained by the States and/or people.

Further, much like the legalize drugs arguments the proponents of gun rights focus on small arms and not on shoulder launched Stinger Missles or Mustard Gas, which are clearly military arms. The interpretation of the 2nd Amendment as a State Right allows the states to maintain fully armed militias.

Lastly, I personally think the argument that individuals should have to right to carry small arms, because the small arms could be used to defend ourselves from a Federal Government gone tyranical is a very weak argument. I think Afganistan is a good example of this. The Afgan freedom fighters were getting their asses kicked until the CIA began running Stinger Missles and anti-tank wepons to them. These wepons allowed the Afgan rebels to neutralize the HIND Helicopters and other Soviet heavy wepons. This made numbers matter, and they bled the Soviets into retreat. Simmilar lessons come from the US "Police Action" in Vietnam.

The Second Amendment, currently, is not interpreted to say the individuals have the unrestricted right to "bear arms".

First there is US v Miller which says that the second amendment is a State Right and not an Individual Right. The power to regulate militias is the right of the states. To this end the states have the right to arm their militias. Also this ruleing of the Supreme Court has been repeatedly upheld (mostly by denying cert, which is usually interpreted as a strong affirmantion of the earlier ruling). Here are some references.

What a militia is, and is not, is defined in US Code Title 10, Subtitle A, Part I, Chapter 13. By the way this excludes female US Citizens who are not a member of the National Guard.

Should you be inclined to argue that US v Miller is just a liberal court ruling which ignores the origional intent of the founding fathers; it would be good to remember that the Federalists won the big battles in the US Constitution. But the Jeffersonians wrote the Bill of Rights. I think the most direct source of the Bill of Rights is the Virginia Declaration of Rights; written by Thomas Jefferson as adopted on June 12, 1776 (3 weeks before the signing of Declaration of Independence). Please look at Section 13 which begins "That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state;"

None of this says that the US Congress or the States couldn't pass a law specifying that individuals have the right to own and carry small arms. Further the 9th and 10th amendments roughly state that rights and powers not specifically granted the Federal Government are retained by the States and/or people.

Further, much like the legalize drugs arguments the proponents of gun rights focus on small arms and not on shoulder launched Stinger Missles or Mustard Gas, which are clearly military arms. The interpretation of the 2nd Amendment as a State Right allows the states to maintain fully armed militias.

Lastly, I personally think the argument that individuals should have to right to carry small arms, because the small arms could be used to defend ourselves from a Federal Government gone tyranical is a very weak argument. I think Afganistan is a good example of this. The Afgan freedom fighters were getting their asses kicked until the CIA began running Stinger Missles and anti-tank wepons to them. These wepons allowed the Afgan rebels to neutralize the HIND Helicopters and other Soviet heavy wepons. This made numbers matter, and they bled the Soviets into retreat. Simmilar lessons come from the US "Police Action" in Vietnam.

The Second Amendment, currently, is not interpreted to say the individuals have the unrestricted right to "bear arms".

First there is US v Miller which says that the second amendment is a State Right and not an Individual Right. The power to regulate militias is the right of the states. To this end the states have the right to arm their militias. Also this ruleing of the Supreme Court has been repeatedly upheld (mostly by denying cert, which is usually interpreted as a strong affirmantion of the earlier ruling). Here are some references.

What a militia is, and is not, is defined in US Code Title 10, Subtitle A, Part I, Chapter 13. By the way this excludes female US Citizens who are not a member of the National Guard.

Should you be inclined to argue that US v Miller is just a liberal court ruling which ignores the origional intent of the founding fathers; it would be good to remember that the Federalists won the big battles in the US Constitution. But the Jeffersonians wrote the Bill of Rights. I think the most direct source of the Bill of Rights is the Virginia Declaration of Rights; written by Thomas Jefferson as adopted on June 12, 1776 (3 weeks before the signing of Declaration of Independence). Please look at Section 13 which begins "That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state;"

None of this says that the US Congress or the States couldn't pass a law specifying that individuals have the right to own and carry small arms. Further the 9th and 10th amendments roughly state that rights and powers not specifically granted the Federal Government are retained by the States and/or people.

Further, much like the legalize drugs arguments the proponents of gun rights focus on small arms and not on shoulder launched Stinger Missles or Mustard Gas, which are clearly military arms. The interpretation of the 2nd Amendment as a State Right allows the states to maintain fully armed militias.

Lastly, I personally think the argument that individuals should have to right to carry small arms, because the small arms could be used to defend ourselves from a Federal Government gone tyranical is a very weak argument. I think Afganistan is a good example of this. The Afgan freedom fighters were getting their asses kicked until the CIA began running Stinger Missles and anti-tank wepons to them. These wepons allowed the Afgan rebels to neutralize the HIND Helicopters and other Soviet heavy wepons. This made numbers matter, and they bled the Soviets into retreat. Simmilar lessons come from the US "Police Action" in Vietnam.

The Second Amendment, currently, is not interpreted to say the individuals have the unrestricted right to "bear arms".

First there is US v Miller which says that the second amendment is a State Right and not an Individual Right. The power to regulate militias is the right of the states. To this end the states have the right to arm their militias. Also this ruleing of the Supreme Court has been repeatedly upheld (mostly by denying cert, which is usually interpreted as a strong affirmantion of the earlier ruling). Here are some references.

What a militia is, and is not, is defined in US Code Title 10, Subtitle A, Part I, Chapter 13. By the way this excludes female US Citizens who are not a member of the National Guard.

Should you be inclined to argue that US v Miller is just a liberal court ruling which ignores the origional intent of the founding fathers; it would be good to remember that the Federalists won the big battles in the US Constitution. But the Jeffersonians wrote the Bill of Rights. I think the most direct source of the Bill of Rights is the Virginia Declaration of Rights; written by Thomas Jefferson as adopted on June 12, 1776 (3 weeks before the signing of Declaration of Independence). Please look at Section 13 which begins "That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state;"

None of this says that the US Congress or the States couldn't pass a law specifying that individuals have the right to own and carry small arms. Further the 9th and 10th amendments roughly state that rights and powers not specifically granted the Federal Government are retained by the States and/or people.

Further, much like the legalize drugs arguments the proponents of gun rights focus on small arms and not on shoulder launched Stinger Missles or Mustard Gas, which are clearly military arms. The interpretation of the 2nd Amendment as a State Right allows the states to maintain fully armed militias.

Lastly, I personally think the argument that individuals should have to right to carry small arms, because the small arms could be used to defend ourselves from a Federal Government gone tyranical is a very weak argument. I think Afganistan is a good example of this. The Afgan freedom fighters were getting their asses kicked until the CIA began running Stinger Missles and anti-tank wepons to them. These wepons allowed the Afgan rebels to neutralize the HIND Helicopters and other Soviet heavy wepons. This made numbers matter, and they bled the Soviets into retreat. Simmilar lessons come from the US "Police Action" in Vietnam.

The Second Amendment, currently, is not interpreted to say the individuals have the unrestricted right to "bear arms".

First there is US v Miller which says that the second amendment is a State Right and not an Individual Right. The power to regulate militias is the right of the states. To this end the states have the right to arm their militias. Also this ruleing of the Supreme Court has been repeatedly upheld (mostly by denying cert, which is usually interpreted as a strong affirmantion of the earlier ruling). Here are some references.

What a militia is, and is not, is defined in US Code Title 10, Subtitle A, Part I, Chapter 13. By the way this excludes female US Citizens who are not a member of the National Guard.

Should you be inclined to argue that US v Miller is just a liberal court ruling which ignores the origional intent of the founding fathers; it would be good to remember that the Federalists won the big battles in the US Constitution. But the Jeffersonians wrote the Bill of Rights. I think the most direct source of the Bill of Rights is the Virginia Declaration of Rights; written by Thomas Jefferson as adopted on June 12, 1776 (3 weeks before the signing of Declaration of Independence). Please look at Section 13 which begins "That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state;"

None of this says that the US Congress or the States couldn't pass a law specifying that individuals have the right to own and carry small arms. Further the 9th and 10th amendments roughly state that rights and powers not specifically granted the Federal Government are retained by the States and/or people.

Further, much like the legalize drugs arguments the proponents of gun rights focus on small arms and not on shoulder launched Stinger Missles or Mustard Gas, which are clearly military arms. The interpretation of the 2nd Amendment as a State Right allows the states to maintain fully armed militias.

Lastly, I personally think the argument that individuals should have to right to carry small arms, because the small arms could be used to defend ourselves from a Federal Government gone tyranical is a very weak argument. I think Afganistan is a good example of this. The Afgan freedom fighters were getting their asses kicked until the CIA began running Stinger Missles and anti-tank wepons to them. These wepons allowed the Afgan rebels to neutralize the HIND Helicopters and other Soviet heavy wepons. This made numbers matter, and they bled the Soviets into retreat. Simmilar lessons come from the US "Police Action" in Vietnam.

The Second Amendment, currently, is not interpreted to say the individuals have the unrestricted right to "bear arms".

First there is US v Miller which says that the second amendment is a State Right and not an Individual Right. The power to regulate militias is the right of the states. To this end the states have the right to arm their militias. Also this ruleing of the Supreme Court has been repeatedly upheld (mostly by denying cert, which is usually interpreted as a strong affirmantion of the earlier ruling). Here are some references.

What a militia is, and is not, is defined in US Code Title 10, Subtitle A, Part I, Chapter 13. By the way this excludes female US Citizens who are not a member of the National Guard.

Should you be inclined to argue that US v Miller is just a liberal court ruling which ignores the origional intent of the founding fathers; it would be good to remember that the Federalists won the big battles in the US Constitution. But the Jeffersonians wrote the Bill of Rights. I think the most direct source of the Bill of Rights is the Virginia Declaration of Rights; written by Thomas Jefferson as adopted on June 12, 1776 (3 weeks before the signing of Declaration of Independence). Please look at Section 13 which begins "That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state;"

None of this says that the US Congress or the States couldn't pass a law specifying that individuals have the right to own and carry small arms. Further the 9th and 10th amendments roughly state that rights and powers not specifically granted the Federal Government are retained by the States and/or people.

Further, much like the legalize drugs arguments the proponents of gun rights focus on small arms and not on shoulder launched Stinger Missles or Mustard Gas, which are clearly military arms. The interpretation of the 2nd Amendment as a State Right allows the states to maintain fully armed militias.

Lastly, I personally think the argument that individuals should have to right to carry small arms, because the small arms could be used to defend ourselves from a Federal Government gone tyranical is a very weak argument. I think Afganistan is a good example of this. The Afgan freedom fighters were getting their asses kicked until the CIA began running Stinger Missles and anti-tank wepons to them. These wepons allowed the Afgan rebels to neutralize the HIND Helicopters and other Soviet heavy wepons. This made numbers matter, and they bled the Soviets into retreat. Simmilar lessons come from the US "Police Action" in Vietnam.

I quibble with the "bright line" distinction that this AC draws. Restricting a person from publishing certain materials on the ground that they are copyrighted can be, in certain circumstances, a violation of that person's First Amendment rights. The question is what those circumstances are. (Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) discusses this issue in some detail.)

With respect to MS's complete description of their modified spec, however, this doesn't seem to be even a close case. Whether MS has protected their trade secret is irrelevant. I can still copyright my explanation of my grandmother's pound cake recipe even if everyone in the county knows the recipe.

You know, you mention the freedom of speech here. In the past, the supreme court has upheld never really made *any* decisions based on 'Copyright Violation Restriction' of speech. They don't seem to have made any claims that speaking in a factual manner about a copyrighted thing would constitute an unprotected form of expression. The closest thing I can find is a 1964 defamation ruling which involved several factual errors. *Factual* errors. Which implies 2 things. First, that I can always say "Fuck microsoft, they suck [figuratively] donkey balls, so does their stinkin software". I am expressing opinion. I can also say "CmdrTaco is one ugly fella". Again, expressing an opinion and the burden of proof is not on my shoulders, as it would require self-censorship and too great a restriction on speech. Secondly, that I can *always* say "I've had Windows 2000 crash on me 7 times in the last 3 weeks", if I have in fact had it crash on me. (And, in many situations, even if I haven't)

I could not, however, state that: "Microsoft chairman Bill Gates steals cars. I saw him do it." unless I could back that up. I could claim he does it without saying I had seen him, thus chalking it up to 'journalisitc factual error' which the supreme court grants happens from time to time.

It is of great intrest as well, that the supreme court has always looked to limit speech and expression in as few ways as possible. That is to say, if you've commited some act of expression which presents a "Clear and present danger" to the general peace, you can be stopped. If, for instance, I were to hold a rally in which I ordered those at said rally to... say.. blow up a building, then the cops -could- rush in and stop me. But, they could not stop me from intimating this without directly saying it, because it would be an unreasonable and too-large restriction on speech. See the supreme court descisions on the first amendment by topic at: Findlaw's constitutional descisions page.

Given that all of this is true, I'd say you should wait for it to go to court, see if you win in the first court (you probably won't) and then instantly get a writ of certiary for the Supreme Court based on first amendment issues. Bust this badboy before it goes any further. Anyway, as an act of Civil Disobedience and rejecting Microsoft's right to tell me I can't say it, I would like to now say these things:

1> Microsoft Authorization Data Specification v1.0 for Microsoft Windows 2000 is, in my opinion, a badly written piece of software, based on no evidence but my opinion that Microsoft produces nothing but badly written software.

2> Microsoft produces nothing, in my opinion, but bad software. Excel is the only exception to this opinion. Microsoft Windows 95, Microsoft Windows 98, Microsoft Windows NT, Microsoft Windows 2000, and MS-DOS all suck. They are all, in my opinion, bad software and should all be deleted from every machine on earth.

Those are constitutionally protected statements. If they want someone, let them come for me.

--Sagev, Freedom Fighter vegas@my.bomis.com

You know, you mention the freedom of speech here. In the past, the supreme court has upheld never really made *any* decisions based on 'Copyright Violation Restriction' of speech. They don't seem to have made any claims that speaking in a factual manner about a copyrighted thing would constitute an unprotected form of expression. The closest thing I can find is a 1964 defamation ruling which involved several factual errors. *Factual* errors. Which implies 2 things. First, that I can always say "Fuck microsoft, they suck [figuratively] donkey balls, so does their stinkin software". I am expressing opinion. I can also say "CmdrTaco is one ugly fella". Again, expressing an opinion and the burden of proof is not on my shoulders, as it would require self-censorship and too great a restriction on speech. Secondly, that I can *always* say "I've had Windows 2000 crash on me 7 times in the last 3 weeks", if I have in fact had it crash on me. (And, in many situations, even if I haven't)

I could not, however, state that: "Microsoft chairman Bill Gates steals cars. I saw him do it." unless I could back that up. I could claim he does it without saying I had seen him, thus chalking it up to 'journalisitc factual error' which the supreme court grants happens from time to time.

It is of great intrest as well, that the supreme court has always looked to limit speech and expression in as few ways as possible. That is to say, if you've commited some act of expression which presents a "Clear and present danger" to the general peace, you can be stopped. If, for instance, I were to hold a rally in which I ordered those at said rally to... say.. blow up a building, then the cops -could- rush in and stop me. But, they could not stop me from intimating this without directly saying it, because it would be an unreasonable and too-large restriction on speech. See the supreme court descisions on the first amendment by topic at: Findlaw's constitutional descisions page.

Given that all of this is true, I'd say you should wait for it to go to court, see if you win in the first court (you probably won't) and then instantly get a writ of certiary for the Supreme Court based on first amendment issues. Bust this badboy before it goes any further. Anyway, as an act of Civil Disobedience and rejecting Microsoft's right to tell me I can't say it, I would like to now say these things:

1> Microsoft Authorization Data Specification v1.0 for Microsoft Windows 2000 is, in my opinion, a badly written piece of software, based on no evidence but my opinion that Microsoft produces nothing but badly written software.

2> Microsoft produces nothing, in my opinion, but bad software. Excel is the only exception to this opinion. Microsoft Windows 95, Microsoft Windows 98, Microsoft Windows NT, Microsoft Windows 2000, and MS-DOS all suck. They are all, in my opinion, bad software and should all be deleted from every machine on earth.

Those are constitutionally protected statements. If they want someone, let them come for me.

--Sagev, Freedom Fighter vegas@my.bomis.com

This is the case. FEIST PUBLICATIONS, INC. v. RURAL TEL. SERVICE CO., 499 U.S. 340 (1991)

However, I don't see how it's relevant to the MP3 case. Mere lists are uncopyrightable, as are facts or ideas themselves. It is the expression of ideas that is copyrightable.

By this logic, the white pages are not copyrightable, but a set of yellow pages which separates businesses into categories is.

Court records, for example, are not copyrighted (although it may be copyright infringement to copy copyrighted materials which happen to appear in court records). However, the citation scheme and page numbering used by West *is* copyrighted.

In either case, I don't see how it applies to the copying of music files by mp3.com, which are not lists but musical works.

Incidentally, how do I stop my posts from all spilling out in one line without typing a bunch of goddamn paragraph tags?

Hmmm. So according to this ruling, if I "sufficiently transform" copyrighted material, it becomes permissible under fair use? I didn't see that in the fair use provisions. From : Under the first of the four 107 factors, "the purpose and Page II character of the use, including whether such use is of a commercial nature . . .," the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message.

The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation. Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled. Indeed, there is no serious contention that the legislature was unjustified in believing that it is difficult, if not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies. While the production of pornographic materials is a low-profile, clandestine industry, the need to market the resulting products requires a visible apparatus of distribution. The most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product. Thirty-five States and Congress have concluded that restraints on the distribution of pornographic materials are required in order to effectively combat the problem, and there is a body of literature and testimony to support these legislative conclusions.

[ . . . ]

Third. The advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of such materials, an activity illegal throughout the Nation. "It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute." We note that were the statutes outlawing the employment of children in these films and photographs fully effective, and the constitutionality of these laws has not been questioned, the First Amendment implications would be no greater than that presented by laws against distribution: enforceable production laws would leave no child pornography to be marketed.

Fourth. The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis. We consider it unlikely that visual depictions of children performing sexual acts or lewdly exhibiting their genitals would often constitute an important and necessary part of a literary performance or scientific or educational work. As a state judge in this case observed, if it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized. Simulation outside of the prohibition of the statute could provide another alternative. Nor is there any question here of censoring a particular literary theme or portrayal of sexual activity. The First Amendment interest is limited to that of rendering the portrayal somewhat more "realistic" by utilizing or photographing children.

Id. at 759-64 (footnotes and citations omitted).

Trivially, yes. Suppose I write a browser that I distribute in binary form that renders standard HTML except adds the element "". No law obliges me to disclose I've made this change to the standard.

Qualification: It could be contended that the antitrust laws may prohibit a monopolist from doing this. Here is Robert Bork's argument to that effect in his white paper in the DOJ v. MS case:

That a monopolist or virtual monopolist is not free to define its product in ways that stifle competition is clear from Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985). The defendant Skiing Co. owned and operated downhill skiing facilities on three mountains in Aspen; plaintiff Highlands operated on a fourth mountain. For years, the two companies offered a week-long pass, the "all-Aspen ticket," usable at any of the four mountains. The price was usually discounted from the price of daily tickets.

Skiing Co. then initiated various changes that ended its cooperative marketing with Highlands, effectively denying skiers the benefits of the four-mountain pass and diminishing substantially skiers' use of Highland's mountain. In successive ski seasons, from 1976 to 1981, Highlands' share of downhill skiing services in Aspen declined steadily: from 20.5% to 15.7% to 13.1% to 12.5% to 11%. Though it agreed that "even a firm with monopoly power has no general duty to engage in a joint marketing program with a competitor," the Supreme Court said that if the firm attempts to exclude rivals on some basis other than efficiency, its behavior is predatory. The record supported the jury's finding that Skiing Co.'s conduct lacked an efficiency justification. The Court therefore upheld the conclusion that Skiing Co. had monopolized the market for downhill skiing services in Aspen. Aspen Skiing is a direct holding that a monopolist is not free to define its product for the purpose and with the effect of excluding a competitor.

(Emphasis added. Incidentally, whatever you think of Bork as a constitutional theorist, he is recognized as standing among the very top rank of scholars of antitrust law, living or dead.)

Remember, everyone in the business world is suddenly in the technology business as IT becomes part of everyone's core competancy. Worse, there aren't enough people with skills (particularly in the corporate/money sector) to give them any reasonable advice about what the best choices to make are. I'm constantly terrified because I work as an advisor on a pretty high level, and while most of my advice (except in the tiny areas where I really am a subject matter expert) boils down to "find someone who knows what they're on about", many of the people I meet doing a similar thing give advice on things with which they have absolutely no experience. Best example was that I recently met a consultant engaged on generating a report for an investor on a possible architecture-component-of-networks business. Six months ago, this guy was in medical school, but now he felt that he didn't need any subject matter expert to assist him in writing his recommendation on whether to invest because he 'knew the consulting methodology'. He was from a name brand consulting firm who you'd all recognize and who is often called in to provide advice in the due diligence phase of investments. It's really frightening.

And, you're right, there are serious drawbacks to taking VC money. They're going to expect to have a say in your company and god help you if you don't have someone who's strong enough in sales to sell your vision to the people who are funding you. There's a good article in FindLaw that summarizes some of these issues.

In the U.S., it is constitutional to pass a law allowing jail time for any libellous statement that can be considered an incitement to a breach of peace. I am not a lawyer, but I think the Supreme Court justices who decided Beauharnai s v. Illinois definitely were. That precedent stands today. Of course, the stuff on that page is certainly not incitement, and it in fact is probably not even libellous. Just watch out for those sweeping generalizations.

After previewing the comment several times, it keeps putting that space before the 's' in Beauharnais. What's up with that?

Redmond (AP) -- Microsoft CEO Steve Balmer announced the company will still be enforcing its trademark on the color coloquially known as "BSOD Blue". When questioned about the recent landmark decision Wal-Mart Stores, Inc. v. Samara Brothers, Inc., Balmer said: "Microsoft firmly believes that this shade of blue, consistent with QUALITEX CO. v. JACOBSON PRODUCTS CO., has acquired 'a secondary meaning' which 'serves no other purpose' and is therefore a permissable trademark under the Lanham act. After all, what purpose could this blue serve other than to identify a computer as running Windows? Surely it is not to inform the user that his computer has crashed when crashing is implicit in the very notion of running Windows".

No immediate lawsuits have been filed, but the suspected potential respondents are believed to be undergoing puberty somewhere in Scandinavia.

In october last celera announced it had filed for 6500 preliminary patents on genes, now what kind of company coughs up the thousands of bucks per patent on 6500 patents and doesn't consider it a major part of their business. (after only been sequencing since may of that year, lord knows how many they've filed by now)
check here
bbc on celera patents
and here legalnews
whipperschappers?

A contributor wrote:

the fact that Jefferson wrote a few lines about no one owning an idea is not evidence in any court of law deciding these cases.

Perhaps Jefferson's letter is not "evidence" as defined in, say, the Federal Rules of Evidence, but that doen't mean it's legally irrelevant. In fact, Jefferson's letter was cited by the Supreme Court in an important patent law case, Graham v. John Deere 383 U.S. 1 (1966) at footnote 2. This opinion contains an important dictum about the need for patent law (and hence, by analogy, copyright law) to be governed by its constitutional purpose of promoting the arts by protecting the public domain.

After Federal laws with such impressive titles as the Sonny Bono Term Extension Act get passed and signed into law, the good folk in our benign and wondrous government reconcile and merge the new law with the body of the existing old law, which is divided up into . The civil law related to copyright is all of a section called Title 17. (The criminal bits of copyright law are off in a seperate section, over in the criminal code). When a new law gets reconciled and merged with the old, it can be much like the application of a diff patch, lots of little changes all over to hell and gone. However, in the case of the Audio Home Recording Act (AHRA), it resulted in a new chapter 10 of Title 17 (PDF), so you can read it for yourself (or try).

In a nutshell, the AHRA:

• defines a bunch of terms, primarily a class of "digital audio recording devices" (section 1001)
• mandates that any device in that class incorporate a Serial Copy Management System (SCMS) or similar copy management technology and prohibits "inaccurately" setting the bits of any SCMS-managed recording (section 1002),
• that anyone manufacturing such a device or media for such a device pay a royalty (section 1003),
• the mechanism for the big copyright owners to divide up their new revenue stream (sections 1004-1007),
• most important!! "No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings." (entire text of section 1008)
• and finally, what people can sue for, what the damage limits are, and how certain disputes can be arbitrated (sections 1009 and 1010).

In examining the AHRA in RIAA vs. Diamond, the court states:

The district court concluded that the exemption of hard drives from the definition of digital music recording, and the exemption of computers generally from the Act's ambit, "would effectively eviscerate the [Act] " because "[a]ny recording device could evade [ ] regulation simply by passing the music through a computer and ensuring that the MP3 file resided momentarily on the hard drive." RIAA I, 29 F. Supp. 2d at 630. While this may be true, the Act seems to have been expressly designed to create this loophole.

There's a lot of stuff in the rest of copyright law, but basically the law gives the copyright owner exclusive control of the copyrighted work with several exceptions. The AHRA in chapter 10 above defines one exception, the other exceptions significant for our puposes are:

• Chapter 1 (PDF): section 107: Fair Use
• Chapter 1: section 108: reproduction by libraries and archives

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teach-ing (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copy-righted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The other significant exception to the copyright owner's exclusive use is section 108. It's a bit convoluted, but the meat is that public libraries and archives can make backup and replacement copies of stuff for themselves under certain circumstances, can make copies of small sections of works in print for patrons, and can make whole copies of out-of-print works for patrons to take home and keep, under the condition that "the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price". And while someone claiming to be a Real Lawyer® in Usenet has said otherwise, I have always thought that if it's legal for a library to do it for you, it's just got to be "fair use" for you to do it for yourself. (But then again, IANAL.)

In summation, when the RIAA writes:

"The bottom line: the only digital copying of music that is allowed is with digital recorders that are covered by and comply with the Audio Home Recording Act."

After Federal laws with such impressive titles as the Sonny Bono Term Extension Act get passed and signed into law, the good folk in our benign and wondrous government reconcile and merge the new law with the body of the existing old law, which is divided up into . The civil law related to copyright is all of a section called Title 17. (The criminal bits of copyright law are off in a seperate section, over in the criminal code). When a new law gets reconciled and merged with the old, it can be much like the application of a diff patch, lots of little changes all over to hell and gone. However, in the case of the Audio Home Recording Act (AHRA), it resulted in a new chapter 10 of Title 17 (PDF), so you can read it for yourself (or try).

In a nutshell, the AHRA:

• defines a bunch of terms, primarily a class of "digital audio recording devices" (section 1001)
• mandates that any device in that class incorporate a Serial Copy Management System (SCMS) or similar copy management technology and prohibits "inaccurately" setting the bits of any SCMS-managed recording (section 1002),
• that anyone manufacturing such a device or media for such a device pay a royalty (section 1003),
• the mechanism for the big copyright owners to divide up their new revenue stream (sections 1004-1007),
• most important!! "No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings." (entire text of section 1008)
• and finally, what people can sue for, what the damage limits are, and how certain disputes can be arbitrated (sections 1009 and 1010).

In examining the AHRA in RIAA vs. Diamond, the court states:

The district court concluded that the exemption of hard drives from the definition of digital music recording, and the exemption of computers generally from the Act's ambit, "would effectively eviscerate the [Act] " because "[a]ny recording device could evade [ ] regulation simply by passing the music through a computer and ensuring that the MP3 file resided momentarily on the hard drive." RIAA I, 29 F. Supp. 2d at 630. While this may be true, the Act seems to have been expressly designed to create this loophole.

There's a lot of stuff in the rest of copyright law, but basically the law gives the copyright owner exclusive control of the copyrighted work with several exceptions. The AHRA in chapter 10 above defines one exception, the other exceptions significant for our puposes are:

• Chapter 1 (PDF): section 107: Fair Use
• Chapter 1: section 108: reproduction by libraries and archives

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teach-ing (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copy-righted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The other significant exception to the copyright owner's exclusive use is section 108. It's a bit convoluted, but the meat is that public libraries and archives can make backup and replacement copies of stuff for themselves under certain circumstances, can make copies of small sections of works in print for patrons, and can make whole copies of out-of-print works for patrons to take home and keep, under the condition that "the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price". And while someone claiming to be a Real Lawyer® in Usenet has said otherwise, I have always thought that if it's legal for a library to do it for you, it's just got to be "fair use" for you to do it for yourself. (But then again, IANAL.)

In summation, when the RIAA writes:

"The bottom line: the only digital copying of music that is allowed is with digital recorders that are covered by and comply with the Audio Home Recording Act."

Hasn't the US Supreme Court defended anonymity as an important element of free speech? Without anonymity, there is always fear of retribution.

Yes, in McIntyr e v. Ohio Elections Commission, the US Supreme Court did state that anonimity is a right protected under the free speech rights as outlined in the 1st Amendment to the US Constitution.

Anonymity, while it protects the speaker from retribution, does reduce the impact of the speech (in my opinion).

As of last year, pretty much anything that is not "obvious" to the PTO and which has economic value can be patented.

In State Street Bank, the Federal Circuit (the US appeals court which hears almost all patent cases) said that a math algorithm alone is patentable if it has an "economic value", i.e. utility, and that such a patent is cannot be stopped for being a mere "business method."

Then, in Excel, the same court said that a patent for a binary switch (one or zero) over a telecommunications network which tells you whether two end parties are using the same carrier is not obvious. That firm literally got a patent on "1"s and "0"s, making the Onion's recent article more on point than many /. postings.

So, as of now, adding 1 + 1 is patentable, for a commercial purpose not directly shown in prior art. Bell Atlantic later bought Excel for some ungodly amount of money...

As of last year, pretty much anything that is not "obvious" to the PTO and which has economic value can be patented.

In State Street Bank, the Federal Circuit (the US appeals court which hears almost all patent cases) said that a math algorithm alone is patentable if it has an "economic value", i.e. utility, and that such a patent is cannot be stopped for being a mere "business method."

Then, in Excel, the same court said that a patent for a binary switch (one or zero) over a telecommunications network which tells you whether two end parties are using the same carrier is not obvious. That firm literally got a patent on "1"s and "0"s, making the Onion's recent article more on point than many /. postings.

So, as of now, adding 1 + 1 is patentable, for a commercial purpose not directly shown in prior art. Bell Atlantic later bought Excel for some ungodly amount of money...

This article hits it right on the nose. The movie industry is leveraging CSS to create anti-competitive control and to inflate prices.

This all happened before. Everyone should take a moment and read U .S. V. PARAMOUNT PICTURES. Especially the first part and part (5) about block licencing.

In this case the Supreme Count found that the motion picture industry was engaing in anti-competitive business practices in violation of the Sherman Act. They overruled the claim that copyright protection justify their business practices. The practices were:

Then:
A) Price Fixing - Using copyright licencing with strings attached to force theaters to raise prices
B) Tying - Using copyright licencing to sell one product (movie A) contingent on another (movie B)

Now:
A) Price Fixing - Using copyright licencing to inflate the price of DVD's using regional licencing
B) Tying - Using copyright licencing to sell one product (movie A) contingent on another (licenced player).

Zdnet
CNN
and in case the 9th circuit site gets slashdotted, there's findlaw.
Naturally, Sony's pressreleases are conspicuously absent.

I would say that the personal computers fall under the category of "private papers" which the Supreme Court has already ruled upon in Boyd vs US, 116 US 616.

As such, Northwests action constitutes a violation of the people's constitutionally protected rights.

The oppinions expressed in this message are my own, and in no way to be considered legal advice.

The Supreme Courts oppinion is considered law.

1. Restrict DMCA from applying to "free speach ... using ... computer products" 1201(c)(4) [Judge Kaplan ignores this completely]
2. Recognize and protect fair use 1201(c)(1) [Judge Kaplan misrepresents Congress's intention]
3. Recognize reverse engineering as legitimate 1201(f) [Kaplan's analysis of this is absolutely moronic]
4. Restrict prohibitions on access circumvention tools only when "without the authority of the copyright owner" (DVD's grant "for home use only") 1201(a)(3)(b)
5. Grant the policymaking power to identify "noninfringing uses" of access circumvention to the "Librarian of Congress" not to judge Kaplan 1201(a)(1)(B,C)
6. Do not list software or source code in the list of technological means 1201(a)(2) [The law ban's devices and services, not code]

Furthermore, the Judge's analysis on the "balancing" between the copyright power and the 1st amendment is completely out of sync with Supreme Court precedent (and the plain text of the DMCA as noted above).
1. He fails to employ "strict scrutiny" concept when using granted powers to restrict fundamental rights
2. Kaplan's doesn't cite the copyright power itself (and notes this), but rather the "necessary and proper" clause. Outrageous. It is neither necessary nor proper to restrict the first amendment.
2. He fails to employ the "least restrictive means" test
3. He fails to employ the "void-for-vagueness" and "overbreadth" tests
4. He looks the other way at a "standardless licencing" arrangement for prior restraint
5. The "balancing" test has been rejected decisively by the court in favor of the Brandeiss test = incitement likely to bring about imminent lawless action
6. Congress cannot delegate prior restraint inducing licencing powers to non-accountable officials (like companies!)
7. U.S. V. PARAMOUNT PICTURES, INC. restrained the copyright power to disallow noncompetitive business practices such as movie price fixing and "block licencing" a form of "tying" one product's licencing to that of another

His preliminary injuction ruling is laced throughout with a confusion about encryption and copy-protection. His conclusions of harm to the MPAA are founded on the lie that DeCSS is a piracy tool. It's not - it's a playback tool that will actually EXPAND the market for DVD's.

Here's a Supreme Court citation that shows the limits of copyright protection regarding restraint of free trade. Oh, by the way, the case is entitled U .S. V. PARAMOUNT PICTURES, INC.

It basically found the motion picture studios used their copyrights to engage in price fixing for movie admissions and also illegal tying of one product to another when they did "block licencing", whereby a theater can't exhibit the popular flick unless they also take unpopular ones.

Nice guys, those movie studios. NOT.

Under current US Supreme Court precedent, it doesn't violate the fourth amendment protections against unreasonable searches to make aerial photographs (from a plane) of someone's backyard that has a huge fence around it and is concealed from view on the ground. ( California v. Ciraolo ). Now imagine how much more powerful/dangerous satellites like this could be in the hands of law-enforcement.

Sure there are plenty of satellites out there in the hands of the government, but most of those are unavailable for mundane applications potentially inconsistent with national security. But one of the rationales in Ciraolo was that the policeman taking the photos from the plane was in publicly accessible space, and that can hardly be said of most spy satellites. But if this particular satellite is available for public use, then does that change the picture? I hope not -- privacy is a scarce enough quality as it is.

The funny thing about this whole debate over access control for copyrights is - it all happened long ago around the turn of the century. Actually, it was a bit different the last time. The last time, it was an attempt by patent holders to expand their rights through outrageous "Licenses" and the Motion Picture Industry was fighting for freedom!

Read the Supreme Court decision in MOTION PICTURE PATENTS CO. v. UNIVERSAL FILM MFG. CO. , 243 U.S. 502 (1917) for some amusemt. Edison and the New York patent holders attempted to do all the evil things the MPAA and DVDCCA are now doing. Hopefully the Court will uphold the doctrine of "first sale" and allow thos who purchase DVDs to use them as any other piece of property that they own.

Oh, and even before motion pictures, book publishers attempted to use licenses printed inside book covers to prevent customers from selling used books after they finished reading them. History does repeat and greedy corporations don't seem to change.

Reread that carefully. Congress may change the rules under which patent litigation may take place, but the patent must stand as if the old law was still in place.

The court then found that, under the law that existed in 1835, the patent was void. (The court also found that the defendant had an implied license to use it since the plantiff had not previously contested such use.)

Seems to me that this case clearly supports the conclusion that congress can not grant IP rights retroactively. I fail to understand how Judge Green could come to the opposite conclusion.

BTW the case cites 8 Wheat. 493 - Does anyone know where I could find a copy of that case?

You get screwed anyway. Just ask the petitioners in Walker v. City of Birmingham: all it takes is a rogue judge with an ex parte injunction, and you're screwed regardless.

I admire your enthusiasm, but I question your knowledge of history.

I believe that this falls under both the 4th and 5th ammendments. The Supreme Court has already ruled that forcing a person to give up his private papers violates the 5th amendment, and the "unreasonable search" clause of the 4th ammendment.

It would seem to me that this would fall under the category of "private papers".

If you are really interesting in this, you should see Boyd vs US, 116 US 616 (1886), which is a really interesting case.

While it could be argued that this doesn't apply in this case, I would ask, was he convicted for the data which resides on that drive? I would say not, for only Kevin knows what is on the drive. Therefore, would not searching the drive be a "fishing expedition" to find additional charges to bring against Kevin? What other reason could the government possibly have for wanting the keys to the data? And if this is the case, or even possibly the case, I would think it is a clear violation of Kevin's 4th and 5th ammendment rights.

The oppinions expressed in this message are my own, and in no way to be considered legal advice.

It undermines the common respect for the actual (American) Bill of Rights. The whole point of such bills is that they outline fundamental and inviolable rights, and they cannot be simply legislated or dismantled under any conditions other than constitutional crises.

What, pray tell, would you enshrine in such a bill? The right not to be offended? The right not to be exposed to profanity? It is insane to try to guarantee these things for the reasons cited above and for others. If you want a good read, try Cohen v. California (1971), where the US Supreme Court pointedly noted that it is "often true that one man's vulgarity is another's lyric".

Your fetish with hostile environment threatens to undermine many other cherished freedoms. The suppression of mere hostility is a poor prize to be purchased with the coin of libery.

The comments implying that the media companies are only scared now because of the difference between analog and digital recording, or because they've suddenly changed in some way, are completely wrong.

Universal Studios and Disney *sued* Sony for contributing to copyright violations when Sony introduced the first VCRs. The suit was eventually decided, in Sony's favor, by the US Supreme Court.

Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses. Theoretically, since DeCSS has a substantial non-infringing use (allowing linux users access to DVD content), it is not an infringement. Interestingly, this argument was derived from patent (not copyright) law.

I found some interesting case law here, if you can stand such legal drivel, and and interesting commentary on this enforcement trend from back in '95.

Violanti:
I don't know how to answer that. Use is use. If you place a device in a clock ...

Such are the great legal minds enforcing this: blindly speculating that someone might be using for surreptitious purposes.

The only thing they left out of this violation of common sense was the usual line about how someone can use this technology to abuse children.

I don't think the fact that the NYPD was called is such a big deal. About 3 months ago I read a story in the paper. Famous chellist Yo-Yo Ma left her 3000000 stradivarius chello in the back of a cab and the NYPD were called to help track it down. I think the value of the object lost/misplaced means the police can get involved.

That's true, there's a story about it here. (BTW, Yo-Yo Ma is a he)

I guess it isn't such a big deal that the NYPD was called in, considering the supposed cost of the prototype. Now whether the prototype was really worth $1,000,000 is another story. The parts were probably worth less than $1000. Once MS assembled them, they were probably worth about $3.58. MS is no doubt including their R&D costs, but if the prototype was lost, the R&D would not have been lost with it.

Apologies: my connection cut off while the last version was being posted. Here is the correctly formatted version.

(1) It seems that the DOJ missed the worst injury MS has caused. Namely, they caused an informational injury in the industry like those recently recognized by the Supreme Court in Kodak v. ITS (1992).

This comes from one thing they did that every user noticed a few years ago: the intentional incompatibility of their API's for external newtork software with MS's internal software, or, in english, tweaking the winsock.dll and friends so Netscape and AOL would crash.

The fact that such suspicious incompatibilities have absolutely no consumer benefit, can only harm competition, and only serve to preserve MS's monopoly OS position and create MS's IE market power seemed very strong evidence. Such conduct was the most flagrant (and traditional) antitrust act MS committed, yet I'm curious why it was never put forward. Was the difficulty proving MS's intent? But isn't MS's behavior suspicious given their hesitancy to give DOJ access to any of their code?

(2) Reading through the Findings of Fact, Judge Jackson makes a number of conclusions about MS's use of monopoly power to leverage other players and other horizontal (other OS's) and vertical (Apps and Hardware manufacturers) markets. Specifically, the potential agreement to split the browser market w/ Netscape on OS lines appears to be a prima facie illegal market division. Is this the strongest theory for an actual finding of an antitrust violation?

(3) MS's refusal to deal problems with Apple and other Hardware manufacturers over exclusive licensing agreements are bad; but, isn't this seems to be a weaker antitrust argument? Namely, it's not at all clear from the legal perspective (although it's pretty clear from a common sense perspective) that MS's market power was proven to extend to hardware dealers. For instance, are the favorable terms to exclusive licensees of Microsoft, while locking out, say OS/2 in the early 90's, enough to constitute an antitrust act on MS's part?

(4)In light of Judge Jacksons Findings of Fact about the merging of IE and Win98, is this sufficient to overcome the DC Circuit's novel test it set down a year and a half ago on browser integration? While Judge Jackson's conclusion that there was no consumer benefit from the integration is strong enough that the DC Circuit can't likely overturn it on a clearly erroneous standard, can they say his findings applied the wrong legal standard?

In other words, the DC Circuit said explicitly MS had shown a minimum showing of technological benefit from integration that, at least, it did not violate the consent decree and probably didn't violate the antitrust laws, if I'm reading it correctly. Judge Jackson then concluded there was no consumer benefit and the integration was solely for anticompetitive purposes. Does Judge Jackson's Finding of Fact thus legally conflict with the DC Circuit's prior conclusions?

(5) Lastly, the Supreme Court has been all but consistent on antitrust in the last few years. It doesn't seem like the DC Circuit test is in line with recent SC decisions, do you think the test will die on appeal?

I think the DC Circuit seemed to misinterpret Kodak v. ITS and other cases. In the end, do you think this case will come down to the legal issue of how consumer harm is to be defined in tech cases, and how antitrust injury is defined in tech competitors?

I mean these as seeds for discussion, answer what you feel is most interesting, or none at all. People don't seem to realize the conservative interpretation antitrust laws are given nowadays, so I'm asking these to find out which theories MS is most likely liable under.

Apologies: my connection cut off while the last version was being posted. Here is the correctly formatted version.

(1) It seems that the DOJ missed the worst injury MS has caused. Namely, they caused an informational injury in the industry like those recently recognized by the Supreme Court in Kodak v. ITS (1992).

This comes from one thing they did that every user noticed a few years ago: the intentional incompatibility of their API's for external newtork software with MS's internal software, or, in english, tweaking the winsock.dll and friends so Netscape and AOL would crash.

The fact that such suspicious incompatibilities have absolutely no consumer benefit, can only harm competition, and only serve to preserve MS's monopoly OS position and create MS's IE market power seemed very strong evidence. Such conduct was the most flagrant (and traditional) antitrust act MS committed, yet I'm curious why it was never put forward. Was the difficulty proving MS's intent? But isn't MS's behavior suspicious given their hesitancy to give DOJ access to any of their code?

(2) Reading through the Findings of Fact, Judge Jackson makes a number of conclusions about MS's use of monopoly power to leverage other players and other horizontal (other OS's) and vertical (Apps and Hardware manufacturers) markets. Specifically, the potential agreement to split the browser market w/ Netscape on OS lines appears to be a prima facie illegal market division. Is this the strongest theory for an actual finding of an antitrust violation?

(3) MS's refusal to deal problems with Apple and other Hardware manufacturers over exclusive licensing agreements are bad; but, isn't this seems to be a weaker antitrust argument? Namely, it's not at all clear from the legal perspective (although it's pretty clear from a common sense perspective) that MS's market power was proven to extend to hardware dealers. For instance, are the favorable terms to exclusive licensees of Microsoft, while locking out, say OS/2 in the early 90's, enough to constitute an antitrust act on MS's part?

(4)In light of Judge Jacksons Findings of Fact about the merging of IE and Win98, is this sufficient to overcome the DC Circuit's novel test it set down a year and a half ago on browser integration? While Judge Jackson's conclusion that there was no consumer benefit from the integration is strong enough that the DC Circuit can't likely overturn it on a clearly erroneous standard, can they say his findings applied the wrong legal standard?

In other words, the DC Circuit said explicitly MS had shown a minimum showing of technological benefit from integration that, at least, it did not violate the consent decree and probably didn't violate the antitrust laws, if I'm reading it correctly. Judge Jackson then concluded there was no consumer benefit and the integration was solely for anticompetitive purposes. Does Judge Jackson's Finding of Fact thus legally conflict with the DC Circuit's prior conclusions?

(5) Lastly, the Supreme Court has been all but consistent on antitrust in the last few years. It doesn't seem like the DC Circuit test is in line with recent SC decisions, do you think the test will die on appeal?

I think the DC Circuit seemed to misinterpret Kodak v. ITS and other cases. In the end, do you think this case will come down to the legal issue of how consumer harm is to be defined in tech cases, and how antitrust injury is defined in tech competitors?

I mean these as seeds for discussion, answer what you feel is most interesting, or none at all. People don't seem to realize the conservative interpretation antitrust laws are given nowadays, so I'm asking these to find out which theories MS is most likely liable under.

Apologies: my connection cut off while the last version was being posted. Here is the correctly formatted version.

(1) It seems that the DOJ missed the worst injury MS has caused. Namely, they caused an informational injury in the industry like those recently recognized by the Supreme Court in Kodak v. ITS (1992).

This comes from one thing they did that every user noticed a few years ago: the intentional incompatibility of their API's for external newtork software with MS's internal software, or, in english, tweaking the winsock.dll and friends so Netscape and AOL would crash.

The fact that such suspicious incompatibilities have absolutely no consumer benefit, can only harm competition, and only serve to preserve MS's monopoly OS position and create MS's IE market power seemed very strong evidence. Such conduct was the most flagrant (and traditional) antitrust act MS committed, yet I'm curious why it was never put forward. Was the difficulty proving MS's intent? But isn't MS's behavior suspicious given their hesitancy to give DOJ access to any of their code?

(2) Reading through the Findings of Fact, Judge Jackson makes a number of conclusions about MS's use of monopoly power to leverage other players and other horizontal (other OS's) and vertical (Apps and Hardware manufacturers) markets. Specifically, the potential agreement to split the browser market w/ Netscape on OS lines appears to be a prima facie illegal market division. Is this the strongest theory for an actual finding of an antitrust violation?

(3) MS's refusal to deal problems with Apple and other Hardware manufacturers over exclusive licensing agreements are bad; but, isn't this seems to be a weaker antitrust argument? Namely, it's not at all clear from the legal perspective (although it's pretty clear from a common sense perspective) that MS's market power was proven to extend to hardware dealers. For instance, are the favorable terms to exclusive licensees of Microsoft, while locking out, say OS/2 in the early 90's, enough to constitute an antitrust act on MS's part?

(4)In light of Judge Jacksons Findings of Fact about the merging of IE and Win98, is this sufficient to overcome the DC Circuit's novel test it set down a year and a half ago on browser integration? While Judge Jackson's conclusion that there was no consumer benefit from the integration is strong enough that the DC Circuit can't likely overturn it on a clearly erroneous standard, can they say his findings applied the wrong legal standard?

In other words, the DC Circuit said explicitly MS had shown a minimum showing of technological benefit from integration that, at least, it did not violate the consent decree and probably didn't violate the antitrust laws, if I'm reading it correctly. Judge Jackson then concluded there was no consumer benefit and the integration was solely for anticompetitive purposes. Does Judge Jackson's Finding of Fact thus legally conflict with the DC Circuit's prior conclusions?

(5) Lastly, the Supreme Court has been all but consistent on antitrust in the last few years. It doesn't seem like the DC Circuit test is in line with recent SC decisions, do you think the test will die on appeal?

I think the DC Circuit seemed to misinterpret Kodak v. ITS and other cases. In the end, do you think this case will come down to the legal issue of how consumer harm is to be defined in tech cases, and how antitrust injury is defined in tech competitors?

I mean these as seeds for discussion, answer what you feel is most interesting, or none at all. People don't seem to realize the conservative interpretation antitrust laws are given nowadays, so I'm asking these to find out which theories MS is most likely liable under.